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‘Enough is enough’

December 8, 2008|Written By Robert Todd

The provincial government has unveiled key reforms to the criminal justice system following the release of the LeSage and Code report, but lawyers say meaningful change rests on a substantial boost to the legal aid tariff.

Attorney General Chris Bentley told Ontario’s criminal lawyers he’s ‘determined’ to address legal aid tariffs, when the time is right.

Attorney General Chris Bentley addressed that ongoing demand at the recent Criminal Lawyers’ Association conference in Toronto, saying he’s waiting for the right time to make the request to his cabinet colleagues. But with the current financial crisis, Bentley told lawyers while he’s “determined to strengthen” the legal aid system, not to expect an increase anytime soon.

“We prepare to make sure that on this issue, which has been part of our lives for so long and is so important to justice in the province of Ontario, we make sure that when the ask is made, it stands the greatest chance for success,” said Bentley in a speech at the conference.

That wasn’t good enough for Ottawa criminal lawyer Mark Ertel, who noted during a question-and-answer session with Bentley that other reports released earlier this year described Ontario’s lawyers as having “palpable” anger over the legal aid tariff.

“[But] I like to think of it more like frustration; the frustration that Pavlov’s dogs have when they press the food lever but no food’s coming out anymore,” said Ertel. “We’d like you to say, ‘I acknowledge as the attorney general that the legal aid plan is broken and it needs to be fixed’ and I’m wondering whether you’re prepared to do that or not.”

The debate over the legal aid tariff, which currently peaks at $97 an hour, reignited when former Ontario chief justice Patrick LeSage and University of Toronto law professor Michael Code released their report on large and complex criminal case procedures.

Among their 41 recommendations was a call for Legal Aid Ontario and the AG to create a higher tariff rate for big cases. The recommendation is aimed at ending the current situation in which leading members of the bar rarely take on long and complex cases because the tariff isn’t in line with their substantial over-head costs and “mature practices,” according to the report.

The legal aid tariff has remained at levels set in the late 1980s, with small increases totalling about 15 per cent introduced in the last few years, the report notes.

Long, complex trials “represent a significant economic sacrifice for leading members of the bar whose normal fees to private clients are at rates several times higher than the legal aid rate,” read the report. As a result, noted the report, 55 per cent of big case management matters are being handled by lawyers with less than 10 years of experience, and 28 per cent are being taken care of by those with less than four years of experience.

“We appear to be trapped in a vicious circle: the longer criminal trials become, the less likely it is that leading counsel will agree to conduct them on a legal aid certificate; and yet having leading counsel conduct the defence in these cases is one of the solutions to the overly long trial, as it is these counsel who are most likely to conduct the trial in an efficient and focused manner,” stated the report.

The authors said a committee of LAO officials, experienced lawyers, and retired judges should make a list of lawyers eligible for the “enhanced” or “exceptional” fees. They also recommend that junior counsel get paid more for going to a trial with senior counsel in big cases. That suggestion targets a lack of training for younger lawyers.

Bentley made a pitch to lawyers, suggesting they keep in mind that legal aid cases are a form of public service.

“Long after they didn’t make any money for me, I still worked on them,” said the former London criminal lawyer. “I worked on them because it’s the right thing to do.”

He also said he is in a good position to handle the legal aid issue, noting, “I bring a knowledge of how the system works and the challenges within it” and has been part of cabinet since the Liberals took hold of the government in 2003.

“In politics, the timing is timing, and the timing is not always predictable,” Bentley told reporters after his speech at the conference.

CLA president Frank Addario agrees with Bentley’s view that legal aid cases are about giving back, but notes that the legal aid system has for 15 years been held together by criminal lawyers’ integrity and sacrifice.

“My members are saying, ‘Enough is enough,’” says Addario. “We don’t, in a modern era, run social programs through service-provider charity. We don’t ask doctors to pay for medicare; we don’t ask engineers to pay for roads; we don’t ask police officers to pay for public safety. It makes no sense to ask criminal lawyers to underwrite access to justice.”

Addario suggests the top tariff rate be raised to $160 to keep up with the consumer price index. Code and LeSage’s recommended “enhanced” rate should be set at approximately $200, and their “extraordinary” rate should be around $300, says Addario. He says the enhanced efficiency brought to the system by senior counsel taking these cases would make up for the government’s extra costs to fund that increase within two years.

University of Toronto law professor Michael Trebilcock, who earlier this year issued a report to the AG on the legal aid system, recommended an immediate increase of the tariff to $110.

Bentley immediately responded to the report by ordering the placement of Crown lawyers who work big cases in police stations in Toronto, Peel Region, Ottawa, and Windsor; talking to the federal justice minister on criminal law changes; and mandatory peer review of big case prosecutions.

One aspect of the report that alarmed some criminal lawyers is a recommendation that the Law Society of Upper Canada more strictly enforce courtroom misbehaviour by defence lawyers.

“The LSUC should reconsider its present approach to courtroom misconduct, to the effect that it lies at the ‘less serious end of the spectrum of professional discipline issues’ and merits only ‘remedial’ responses such as letters of advice, invitations to attend, and regulatory meetings,” states the report.

“When counsel’s misconduct disrupts or distorts criminal proceedings, especially long complex trials, it causes great harm to the administration of justice and is worthy of significant penalties.”

Canadian Council of Criminal Defence Lawyers chairman Bill Trudell, whose practice concentrates largely on law society discipline cases, fears struggling judges will abuse that recommendation. He says warnings from judges may be replaced by full-out complaints to the LSUC.

“The judges have an obligation to control their courts, and a judge who doesn’t control their court will use this as an invitation to report a person to the law society,” says Trudell. “It opens the door for judges who may not be as good or as patient or as disciplined as other judges.”

Judges need to exercise more discretion and “real control” in their courtrooms, says Trudell, “and not use this as a sword and an easy way out.”

Trudell also took odds with LeSage and Code’s finding that judges have been put off by a lack of action from the law society on misconduct allegations from judges.

“It’s not been my experience that when judges complain about lawyers that the law society doesn’t treat it very seriously,” says Trudell. “As a matter of fact, I think that they do.”

The report also suggests the development by the CLA and the Ontario Crown Attorneys Association of joint education programs to “revive the traditions of collegiality and respect between the Crown and defence bars.”